State ex rel. Cowan v. Modrell

• Decision Date: 31 January 1852
• Parties: THE STATE, TO THE USE OF COWAN, v. MODRELL ET AL.
• Court: Missouri Supreme Court

15 Mo. 421

THE STATE, TO THE USE OF COWAN,

v.MODRELL ET AL.

Supreme Court of Missouri.

January Term, 1852.

ERROR TO BUCHANAN CIRCUIT COURT.

This was a civil action brought in the Buchanan Circuit Court, in the month of March, 1850. The petition, in substance, states that the defendants, on the 5th day of December, 1843, made their writing obligatory to the State of Missouri in the sum of eight thousand dollars, which writing obligatory was conditioned that the defendants, John Modrell and James Gilmore, executors appointed by the last will of Robert Modrell, deceased, should faithfully execute said will, and faithfully demean themselves as such executors, &c. (in the usual form of such bonds), then said writing should be void. The petition further states, that said John Modrell and James Gilmore then obtained letters testamentary upon said estate, and took upon themselves the executorship thereof; and that, afterwards, on the 8th day of October, in the year 1844 (while the said Modrell and James Gilmore were still the executors of said estate), in the County Court of the county of Buchanan, the said Isaac Cowan, in due course of law, proved up an account against said estate for the sum of one hundred and thirty-one dollars, which said amount was duly allowed by said court in favor of said Isaac Cowan, and record made thereof. The petition then alleges that the said John Modrell and James Gilmore, executors as aforesaid, have not performed the conditions of said bond or writing obligatory, but have failed to pay the debts and legacies as far as the assets extended and the law directed; but on the contrary thereof, a large amount of goods, chattels and personal property, belonging to the estate of the said Robert Modrell, deceased, of the value of five hundred dollars, came into their hands, to be paid out in due course of law, but which they have wholly converted to their own use, and have failed to pay, and still fail to pay, the said demand allowed in favor of said Isaac Cowan against said estate, or any part thereof, although requested so to do. The petition further alleges, that said executors have failed to render just accounts of said estate, as required by law, and have otherwise failed to discharge their duties as such executors, by which said bond has become forfeited to said State for the use of said Cowan, &c. Afterwards, at the March term of said court, in the year 1850, the defendants filed their answer to said petition, in which they state that the plaintiff was indebted to said estate of Robert Modrell, in the sum of one hundred and seventy dollars, for money received by plaintiff for said Robert Modrell in his life-time, which they allege is evidenced by his written acknowledgment, which was filed with the answer, and in the further sum of one hundred and fifty dollars, received by plaintiff for the said Robert Modrell in his life-time, for a wagon sold by plaintiff belonging to said Robert Modrell. The defendants asked judgment against plaintiff in favor of said executors for the balance due them on said account.

The plaintiff, in the replication to defendants' offset, stated that he was not indebted to said estate as charged in said answer; that if he had ever received any money for said Robert Modrell, the same had been paid to him in his lifetime; that he had never sold a wagon belonging to said Modrell. Plaintiff then set up the statute of limitation to the defendants' whole offset, or to each item of said offset separately. He also sets up a former recovery as to the wagon named in defendants' offset. Plaintiff then insists that defendants have no right to set-off the demands named in their answer against plaintiff's demand, which is equivalent, under our late statute, to a demurrer to the answer.

Upon the hearing of the cause, the plaintiff read in evidence the demand proved up and allowed by the County Court of Buchanan county, in favor of said Isaac Cowan, against the estate of Robert Modrell, deceased, and also the indorsement of allowance thereon, as referred to in the plaintiff's petition, after which plaintiff closed his case.

The defendants then offered to read in evidence what purported to be a receipt of Isaac Cowan, for one hundred and sixty dollars and eighty-one cents, which was stated in said receipt to have been received from James Frazier for Robert Modrell, on the 24th day of October, 1840, to the reading of which as evidence to the jury the plaintiff objected, but the court overruled the objection, and permitted said receipt to be read as evidence in the cause, and exceptions were taken. The defendants then closed their case.

The plaintiff then moved the court to instruct the jury: 1. That they will find for the plaintiff the amount of his demand read in evidence, no legitimate offset having been offered or proved in this cause. 2. That the jury will exclude from their consideration all evidence offered by defendants in reference to their offset in this cause, in making up their verdict. 3. That a debt due from said Cowan to Robert Modrell, deceased, in his life-time, cannot be set up by way of offset as a defense for defendants upon the trial of this cause. 4. That if the jury believe from the evidence, that the money purported to have been received by said Cowan for the use of said Robert Modrell, in his life-time, was received more than five years before the commencement of this suit, and that no promise has been made in writing to pay the same within five years before the commencement of this suit, or the filing of said offset, then they will find for plaintiff the whole amount of his demand read in evidence. 5. That unless there has been a promise in writing to pay the money received by said Cowan, to Modrell or his representatives, within five years previous to the commencement of this suit, then the same is barred by the statute of limitations, and the same cannot be set-off in this action. All of which said instructions were refused by the court, and exceptions saved by the plaintiff.

The defendants then moved the court to instruct the...